Can We Get This Pinned - The Court Document Concerning Stopping the Mandate

JURISDICTIONAL STATEMENT
The petition challenges an Emergency Temporary Standard issued
by OSHA pursuant to 29 U.S.C. § 655 on November 5, 2021. The Petition
for Review was filed pursuant to Federal Rule of Appellate Procedure 15
on November 5, 2021. The Petition was filed within the 60-day window
established in 29 U.S.C. § 655(f); therefore, it is timely. Jurisdiction is
conferred on this Court by 29 U.S.C. § 655(f), which states, “Any person
who may be adversely affected by a standard issued under this section
may . . . file a petition challenging the validity of such standard with the
United States Court of Appeals for the circuit wherein such person
resides.” Petitioners are all adversely affected by the ETS, and they
reside within the Fifth Circuit.

STATEMENT OF ISSUES
1. Whether the ETS exceeds OSHA’s authority under its
enabling statute.
2. Whether the ETS exceeds Congress’s authority under the
Interstate Commerce Clause.
3. Whether the ETS exceeds OSHA’s authority under the
nondelegation doctrine.

STATEMENT OF THE CASE
I. Introduction
Last summer, the Biden Administration went all the way to the
U.S. Supreme Court in defense of its eviction moratorium from the U.S.
Centers for Disease Control. The answer: Don’t try this again without
explicit congressional approval. Ala. Ass’n of Realtors v. HHS, 141 S. Ct.
2320, 2320 (2021) (Kavanaugh, J., concurring). And then after telling the
American people the CDC lacked the legal authority to renew the eviction
moratorium, the Administration went ahead and reimposed the
moratorium anyway, which the Supreme Court promptly and definitively
shot down. Ala. Ass’n of Realtors v. HHS, 210 L.Ed.2d 856 (U.S. 2021)
(per curiam).
Now here we are again, and again the law is clear: the Occupational
Health and Safety Administration is no more the nation’s public health
authority than the CDC was the nation’s rental regulator. The
Emergency Technical Standard (ETS) exceeds OSHA’s statutory
authority and flunks the high bar set for such sweeping exercise of
economy-wide administrative power.
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Vaccination is a public health issue that affects people throughout
society; COVID-19 is not a hazard particular to the workplace. And there
is no need to utilize an emergency rule to address COVID-19, which has
been going on for nearly two years. Congress did not grant OSHA such
sweeping and broad powers in its authorizing statute. And if it did, the
statute violates both the Interstate Commerce Clause and the
nondelegation doctrine of the U.S. Constitution, which properly left
society-wide public health decisions to the police powers of the states.

A. Factual Background
On September 9, 2021, President Joe Biden held a press conference
in which he stated that his “patience is wearing thin” with unvaccinated
Americans, and he announced COVID-19 vaccine mandates on nearly
100 million Americans.1 The mandates would be imposed on federal
workers, federal contractors, and—most aggressively of all—on
employers and workers at private companies like Petitioners.
The purported tool for imposing as broad a mandate as possible was
an Emergency Temporary Standard (ETS) promulgated by OSHA. After
1 Kevin Liptak & Kaitlan Collins, Biden Announces New Vaccine
Mandates That Could Cover 100 Million Americans, CNN (Sept. 9,
2021, 9:01 P.M.), [link to www.cnn.com (secure)]
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many publicly questioned whether OSHA had such power, President
Biden explained at a press conference on September 24, 2021, that he
was “moving forward with vaccination requirements wherever [he] can.”2
The ETS requires all employers with 100 or more employees to
ensure their workforce is fully vaccinated or require any workers who
remain unvaccinated to mask and produce a negative test result on at
least a weekly basis before coming to work. App’x 005. Moreover, the rule
requires that employers bear the cost of vaccination, but intentionally
pushes the cost of testing toward the employee to heighten the pressure
on the employee to get vaccinated. App’x 040.
The sixteen corporate entity petitioners (the “Trosclair
Companies”) are a management company and fifteen locally owned
supermarkets that conduct business under the names Ralph’s Market,
Butcher Boy, and Save A Lot and have been in operation in Louisiana
since 1984. They share common ownership and common management, as
Brandon Trosclair is the single member-manager of the limited liability
2 Robert Towey, Biden Says Unvaccinated Americans Are ‘Costing All of
Us’ as He Presses Covid Vaccine Mandates, CNBC (Sept. 24, 2021, 11:12
A.M.), [link to www.cnbc.com (secure)]
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companies and president of the incorporated entity. App’x 161. They are
all incorporated in Louisiana and maintain their principal place of
business in Louisiana. App’x 160. Combined, they employ almost 500
workers and are currently subject to OSHA regulations. App’x 161. They
will be adversely affected by the ETS because they already face a
shortage of full-time employees, and many current and prospective
workers do not want to be forced to receive the COVID-19 vaccine or be
subjected to weekly testing. App’x 161-162. Thus, the ETS will make it
even harder to hire and to maintain employees in an already tight labor
market. App’x 162.
The six individually named petitioners (the “CaptiveAire
Employees”) are residents of Texas and employees of CaptiveAire
Systems, Inc., a corporation with approximately 1,500 employees. App’x
165, 168, 171, 174, 177, 180. They will be adversely affected by the ETS
because it will force them, against their will, to show their employer proof
of COVID-19 vaccination or be subjected to (and likely forced to pay for)
weekly COVID-19 testing—or risk losing their jobs and livelihoods if they
refuse. App’x 165-66, 168-69, 171-72, 174-75, 177-78, 180-81.

This
adverse effect is particularly troubling, unfair, and illegal as it applies to
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Petitioners Dailey, Gamble, Jones, and Reyna because they work mostly
alone on roofs and cannot spread COVID-19 to any co-workers. App’x 165,
168, 171, 177. OSHA’s claimed authority over their private healthcare
decisions is an egregious government overreach.
Thus, all Petitioners will face a significant, adverse effect from the
ETS. For this reason, they oppose implementation of the ETS and have
brought this Petition for Review

LEGAL STANDARD
The burden of proving the validity of an occupational health and
safety standard rests with OSHA. Industrial Union Dept., AFL-CIO v.
American Petroleum Inst., 448 U.S. 607, 653 (1980). See Color Pigments
Mfrs. Ass’n v. OSHA, 16 F.3d 1157, 1161 (11th Cir. 1994); Tex. Indep.
Ginners Ass’n v. Marshall, 630 F.2d 398, 414 n.27 (5th Cir. 1980).
SUMMARY OF ARGUMENT
The OSHA authorizing statute does not grant the Secretary of
Labor (the “Secretary”) the power to issue a COVID-19 vaccine mandate.
In order to be lawful, an ETS must address a workplace-specific safety
issue, address a grave danger, be necessary to protect workers, and
address a toxic or physically harmful substance, agent, or new hazard.
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The ETS fails on all four counts. First, the ETS addresses a societywide health concern, not a work-place specific harzard. Second, even
assuming that COVID-19 mitigation remains a compelling interest, see
Does v. Mills, 595 U. S. ____ (2021), Slip Op. at *6 (Gorsuch, J., dissenting
from denial of emergency application), that does not automatically
qualify it as a “grave danger” as the Occupational Safety and Health Act
uses that term. The Administration’s failure to act expeditiously on the
ETS proves that it is not, in fact, a grave danger. Third, the ETS is also
not necessary—there are many other tools for combatting COVID-19, and
just months ago OSHA examined the same facts and determined that a
vaccine mandate was not necessary even for healthcare workers.
Moreover, the ETS addresses an infection disease, not a toxic substance
or workplace hazard. Finally, general principles of statutory
interpretation support Petitioners’ reading of the OSHA statute.
In the alternative, if the ETS is allowed under the OSHA
authorizing statute, then that statute exceeds the powers of Congress
under the Interstate Commerce Clause. Imposing a vaccine mandate on
employers with more than 100 employees exceeds the limits of
congressional power to regulate interstate commerce because there is no
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finding that all such companies engage in interstate commerce. Such a
widespread regulation of nonecomic activity is not allowed under the
auspices of the Commerce Clause.
Or if it is found that the Secretary does have the power to issue the
ETS under the OSHA authorizing statute, then such administrative
power violates the nondelegation doctrine. Congress cannot delegate to
an administrative official the broad ability to make law by utilizing a
new, unforeseen statutory power to issue an emergency rule which has
only a tangential connection to workplace safety. In this instance, the
Secretary has failed to follow an intelligible principle from Congress.
For all three reasons, the Court should permanently enjoin the ETS
throughout the United States.

ARGUMENT
I. The ETS exceeds the authority Congress gave OSHA in its
enabling statute.
Congress passed the Occupational Safety and Health Act (the “Act”)
in 1970, codified at 29 U.S.C. §§ 651-678, to assure safe and healthy
working conditions for the nation’s workforce and to preserve the nation’s
human resources. 29 U.S.C. § 651 (1976). Toward that goal, the Act
allows the Secretary, after public notice and opportunity for comment by
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interested persons, to promulgate “any occupational safety or health
standard,” id. at § 655(b), but “only where a significant risk of harm
exists[,] and . . . the Agency [bears the] burden of establishing the need
for a proposed standard.” Indus. Union Dep’t, 448 U.S. at 652–53. A
permanent standard may be issued under 29 U.S.C. § 655(b) to serve the
objectives of OSHA and requires procedures similar to informal
rulemaking found in the Administrative Procedure Act at 5 U.S.C. § 553.
The Act allows the Secretary to bypass these normal procedures by
promulgating an Emergency Temporary Standard to take effect
immediately upon publication in the Federal Register only if the
Secretary determines that “employees are exposed to grave danger from
exposure to substances or agents determined to be toxic or physically
harmful or from new hazards,” and also determines “that such emergency
standard is necessary to protect employees from such danger.” 29 U.S.C.
§ 655(c)(1). An ETS also serves as a proposed rule, and the Secretary
must act on final promulgation no later than six months after
publication. 29 U.S.C. § 655(c)(1).
Any standard, permanent or temporary, has the force of law
because the Act imposes upon every employer the duty to “comply with
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occupational safety and health standards promulgated under this
chapter” or face civil and criminal penalties. 29 U.S.C. § 654. Therefore,
the Secretary must include “a statement of reasons for such action” in the
Federal Register. 29 U.S.C. § 655(e); Fla. Peach Growers Ass’n v. U.S.
Dep’t of Labor, 489 F.2d 120, 124 (5th Cir. 1974) (citing Dry Color
Manufacturers’ Ass’n v. U.S. Dep’t of Labor, 486 F.2d 98 (3d Cir. 1973)).
On November 5, 2021, OSHA published the ETS requiring all
employers with 100 or more employees to ensure their workforces are
fully vaccinated or show a negative test at least once a week. App’x 005.
The ETS is effective immediately, though the compliance date is set for
30 days later, except for the testing component, which is set at 60 days.
App’x 152. The ETS exceeds OSHA’s statutory authority in several ways.

The ETS is not an “occupational health and safety”
standard.
The ETS exceeds the statutory authority given to OSHA by
Congress because it is not related to the workplace. See 29 U.S.C. § 651.
OSHA has authority over workplace-related hazards, not any hazard one
might encounter anywhere in the world.
The purpose of the Act, in accordance with Congress’s power under
the Interstate Commerce Clause, is to “assure so far as possible every
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working man and woman in the Nation safe and healthful working
conditions.” 29 U.S.C.S. § 651(b). The Secretary is authorized to issue
“occupational health and safety standards,” which “means a standard
which requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and places of
employment.” 29 U.S.C. §652(8). While Congress authorized the
Secretary to “set mandatory occupational safety and health standards
applicable to businesses affecting interstate commerce,” 29 U.S.C. §
651(b)(3), “Congress repeatedly expressed its concern about allowing the
Secretary to have too much power over American industry.” Indus. Union
Dep’t, 448 U.S. at 651. The ETS exceeds this authority because it is not
an occupational health and safety standard.
OSHA has never attempted to implement a rule this broad. It has
considered doing so since 2010 with an “Infectious Diseases Regulatory
Framework.”3 This Framework purports to give it regulatory authority
3 Regulatory Framework, Regulations.gov (Oct. 9, 2014),
[link to www.regulations.gov (secure)]
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over airborne infectious diseases, but OSHA has repeatedly shelved the
suggestion, leaving it to languish on the agency’s no-action agenda.4
The only other vaccination ever covered by an OSHA standard is its
Bloodborne Pathogens standard, mandating that employers whose
workers could be exposed to blood or other potentially infectious
materials at work offer free Hepatitis B vaccination to employees. Am.
Dental Ass’n v. Sec’y of Labor, 984 F.2d 823, 825 (
7th Cir. 1993). Workers
who choose not to be vaccinated for Hepatitis B are required to sign a
form acknowledging that they were offered the shot and declined. Id.; see
also 29 C.F.R. § 1910.1030(f)(2)(iv). Unlike the ETS, that rule did not
require employees to be vaccinated or test negative. And that rule applied
only to workers who could potentially be exposed to bloodborne pathogens
in specific fields at work. Yet even that rule was found partially unlawful
because it applied in an overbroad manner to sites not controlled either
by the employer or by a hospital, nursing home, or other entity that is
4 “No infectious diseases standard forthcoming, acting OSHA head
says,” Safety+Health Magazine (May 29, 2020),
[link to www.safetyandhealthmagazine.com (secure)]
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itself subject to the bloodborne-pathogens rule. Am. Dental Ass’n, 984
F.2d at 830.
All OSHA standards apply to places of employment where the harm
that the standard seeks to mitigate happens in the workplace, as opposed
to private homes, retailers, or other public spaces. OSHA standards are
historically focused on dangers at work because of the work. Allowing
OSHA to implement standards based on dangers in society generally,
rather than work-specific dangers, would be a huge shift in the law,
giving OSHA far more power than Congress intended.
COVID-19 is a danger to society generally. It is likely to spread
anywhere people come together, not just the workplace, as the ETS itself
admits: “COVID-19 is not a uniquely work-related hazard.” App’x 010.
Thus, the workplace is being used as a pretext for a larger goal: to
increase vaccinations everywhere. This Court is “not required to exhibit
a naiveté from which ordinary citizens are free.” Dep’t of Commerce v.
New York, 139 S. Ct. 2551, 2575 (2019). “Accepting contrived reasons [for
administrative law decisions] would defeat the purpose of the
enterprise.” Id.
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The President announced that the true purpose of the ETS is “to
reduce the number of unvaccinated Americans by using regulatory
powers and other actions to substantially increase the number of
Americans covered by vaccination requirements—these requirements
will become dominant in the workplace.”5 The ETS is part of a
comprehensive scheme to limit the spread of COVID-19 everywhere by
forcing vaccinations on as many people as possible, ensuring federal
employees, military personnel, federal contractors, health-care workers,
and employees of large companies are all less likely to spread the disease
anywhere each individual goes.

Thus, the ETS exceeds OSHA’s statutory authority because it is not
targeted at dangers specific to the workplace. It unlawfully attempts to
shift the administrative burden of a social problem onto employers with
more than 100 employees, even though it only incidentally concerns their
workplaces. It commandeers them into forcing a federal government
social policy onto their employees, and makes them pick up the cost to
boot. This overly broad attempt to address a universal health risk
5 Path Out of the Pandemic, The White House,
[link to www.whitehouse.gov (secure)] (last visited Sept. 22, 2021).
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contradicts the Act, which requires the Secretary to determine a
significant risk of material health impairment in a job site. Indus. Union
Dep’t, 448 U.S. at 639–40.
B. The ETS does not address a “grave danger.”
The ETS also exceeds OSHA’s authority because the Secretary
cannot adequately show that “employees are exposed to grave danger
from exposure to substances or agents determined to be toxic or
physically harmful or from new hazards.” 29 U.S.C. § 655(c)(1). Congress
has “narrowly circumscribed the Secretary’s power to issue temporary
emergency standards.” Indus. Union Dep’t, 448 U.S. at 651. Before
issuing any emergency standard, the Secretary must make the
“threshold determination” that the substance is a grave danger for job
sites. Indus. Union Dep’t, 448 U.S. at 639–40. The “grave danger”
requirement to implement an ETS sets an even higher bar than the
“significant risk” requirement that applies to normal standards
promulgated by OSHA.
“The Agency cannot use its ETS powers as a stop-gap measure. This
would allow it to displace its clear obligations to promulgate rules after
public notice and opportunity for comment in any case, not just in those
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in which an ETS is necessary to avert grave danger.” Asbestos Info.
Ass’n/North Am. v. OSHA, 727 F.2d 415, 422 (5th Cir. 1984). “[T]he ETS
statute is not to be used merely as an interim relief measure, but treated
as an extraordinary power to be used only in ‘limited situations’ in which
a grave danger exists, and then, to be ‘delicately exercised.’” Id. (citing
Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1155
(D.C. Cir. 1983)); see also Taylor Diving & Salvage v. U.S. Dep’t of Labor,
537 F.2d 819, 820-21 (5th Cir. 1976); Florida Peach Growers, 489 F.2d at
129; Dry Color Mfrs.’ Ass’n, 486 F.2d at 104 n.9a. OSHA must show that
the spread of COVID-19 is a grave danger that requires it to implement
the measure now rather than waiting for the normal notice-and-comment
procedure. “[T]he plain wording of the statute limits [the court] to
assessing the . . . grave danger that the ETS may alleviate, during the
six-month period that is the life of the standard.” Asbestos Info.
Ass’n/North Am., 727 F.2d at 422.
OSHA’s recent actions undermine its assertion that the spread of
COVID-19 is a grave danger that cannot wait for the notice-and-comment
process. Just a few months ago, OSHA evaluated this exact same
hazard—whether COVID-19 presents a grave danger to all covered
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workplaces—and came to the opposite conclusion: that only workplaces
providing healthcare services faced enough grave danger to warrant an
ETS. 86 Fed. Reg. 32,376 (June 21, 2021). This was not simply an
oversight: OSHA explicitly considered—and rejected—proposals to apply
the June 21 ETS beyond healthcare.6 Furthermore, though emergencyuse-authorization vaccines were in widespread circulation, there was no
mandate for jobs necessitating contact with those who have tested
positive for COVID-19. The fact that OSHA concluded that all workplaces
did not face a grave danger just a few months ago should lead this Court
to doubt whether the evidence OSHA has recently proffered shows a
“grave danger.” OSHA is really attempting to use the ETS as an interim
relief measure—exactly the reason courts have said OSHA may not
implement an ETS.

OSHA’s guidance published a few short months ago, in June 2021,
saying, “most employers no longer need to take steps to protect their
workers from COVID-19 exposure in any workplace, or well-defined
portions of a workplace, where all employees are fully vaccinated.”7 Thus,
OSHA must now explain why the spread of COVID-19 is a grave danger
warranting the ETS. In a matter of months, OSHA went from “most
employers no longer need to take steps to protect their workers from
COVID-19 exposure in any workplace” to COVID-19 exposure in every
workplace is a “grave danger.” Such inconsistency by the Agency should
lead this Court to view with suspicion its current claim that COVID-19
exposure is a grave danger requiring an emergency rule and allowing the
Agency to skip notice-and-comment procedures.
Second, Pfizer received full, non-EUA approval from the Food &
Drug Administration on August 23. If this were truly a “grave danger”
requiring an emergency standard, OSHA could have promulgated an
ETS immediately thereafter. Instead, it waited several weeks, until the
7 Emily Harbison et al., OSHA Issues Updated COVID-19 Guidance for
All Workplaces, The Employer Report (June 10, 2021),
[link to www.theemployerreport.com (secure)]
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White House suddenly discovered its power to issue an ETS. President
Biden announced his intention for an ETS on September 9. It then took
his Department of Labor and Office of Management and Budget (OMB)
over eight weeks to actually write and promulgate an ETS that went
beyond the bare-bones press release initially provided. Again, the
extended timeframe for the ETS undermines any claim of exigence. And
the real kicker is the same day the ETS was released, November 4, the
White House also announced it was delaying its federal contractor
vaccination mandate from December 8 to January 4, again undermining
its assertion of exigency.8 Truly “grave dangers” do not wait to spread
until after the holidays.

Thank you. Here's a link to Oklahoma's filing:

[link to www.oag.ok.gov (secure)]

And a good news article about it:

[link to kfor.com (secure)]

and Pine this sheot

Bump for visibility.

bump

Tried to pine this, but says too many active karma pins right now.

:5stars:

:1culpritz:

:sustainable:

.

Is there a Cliff Notes version or synopsis available?

.

Good One!

You forgot to put Trump in this meme lol

Here is a piece from the Heritage Foundation laying out the
end run that Brandon et al have tried with the mandate.

Stick a fork in it. It's done.

[link to www.heritage.org (secure)]

Can you link the ruling? I don't see that here. Just the suit. If you can copy the ruling summation, that would be great.

I can't download PDF files on my phone. Not enough memory available.